The Supreme Court continues to hand down a torrent of opinions, many of them dealing with significant issues of law and many are cases of first impression. Clearly, this is a Court bent on eliminating its backlog and dispensing speedy justice to its citizens. Furthermore, as this column goes to press, the Court has reversed its controversial practice of the last fifteen years and announced it will accept all appeals from final decisions of trial courts, a move that will make justice available to many more citizens of New Hampshire.1 This move is estimated to double the cases accepted for approval. Bravo for the Court!!2

Allen v. Dover Co-Recreational Softball League, opinion issued September 30, 2002, establishes tort liability rules for persons engaging in recreational sports. Here, the plaintiff was hit in the head by an errantly thrown softball as she ran to first base in an adult, co-recreational, slow-pitch softball tournament. A unanimous Supreme Court, speaking through a fluent opinion by Justice Duggan, first ruled that the comparative fault statute (RSA 507:7-d) did not apply, nor did the judicial doctrine of assumption of the risk bar the plaintiff from recovering for her injuries. Rather, the Court said the salient issue was the simply stated question whether or not the defendant owed a duty to the plaintiff. Rejecting the defendants’ argument that the Court should adopt a standard of care that would hold participant sponsors and organizers liable for reckless or intentional conduct only, the Court opted instead for a plain vanilla negligence standard: "We believe that the negligence standard, properly understood and applied, is suitable for recreational athletic activities because the conduct of a participant, sponsor or organizer is measured against the conduct that a reasonable participant, sponsor or organizer would engage in under the circumstances." The Court went on the establish the appropriate standard of care to be applied to participants in recreational athletics as follows:

(1) the nature of the sport involved; (2) the type of contest, i.e., amateur, high school, little league, pick-up, etc.; (3) the ages, physical characteristics and skills of the participants; (4) the type of equipment involved; and (5) the rules, customs and practices of the sport, including the types of contact and the level of violence generally accepted….A defendant may be held liable to the plaintiff for [unreasonably] creating or countenancing risks other than risks inherent in the sport, or for increasing inherent risks, and in any event will be held liable for reckless[] or intentional[] injurious conduct totally outside the range of ordinary activity involved in the sport, but liability should not place unreasonable burdens on the free and vigorous participation in the sport….A defendant, however, may not be held liable for negligent, or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport….(applying standard of care to boxing that recognizes ‘participants excel by injuring their opponents…[and] the very acme of achievement for a boxer is to so batter the opponent as to induce a temporary coma—otherwise known as a knockout’).

Wong v. Ekberg, opinion issued September 20, 2002, is an excellent primer on legal malpractice. The Court first established the parameters required to found a legal malpractice claim: "In a legal malpractice case, a plaintiff must prove: (1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach." The plaintiff challenged his attorney’s investigation of his case and his attorney’s trial tactics and judgment but the pro se plaintiff planned to proceed without an expert. That was the heart of the controversy with which the Supreme Court was confronted and the Court determined that expert testimony was required in most legal malpractice cases:

It is well established that expert testimony is required ‘where the subject presented is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson’….Whether a plaintiff is required to have expert testimony in order to establish the requisite standard of care and to prove a breach thereof in a legal malpractice case is a question of first impression for this court. Other jurisdictions that have addressed this issue have held that, except in clear or palpable cases, ‘[I]n an action for legal malpractice, expert testimony is generally needed to establish both the level of care owed by the attorney under the particular circumstances and the alleged failure to conform to that benchmark’….The reason for this requirement is that ‘[w]ithout expert testimony, lay juries cannot understand most litigation issues, local practices, or the range of issues that influence how an attorney should act or advise’….Thus, ‘to avoid liability being imposed solely upon a disgruntled client’s version of what happened or what he or she believes should have happened’….expert testimony is necessary to inform the jury regarding the skill and care ordinarily exercised by lawyers, a measure not ordinarily within the common knowledge of lay persons.

The Court went on to hold that although expert testimony "may not be required when ‘the evidence of negligence is so patent and conclusive that reasonable persons can reach only one conclusion,’ this is not such a case….Here, the plaintiff alleged the defendant negligently investigated the case by failing to interview certain witnesses. Because the extent to which an attorney, in the exercise of due care, will advance funds to hire investigators or depose witnesses is not a matter of common knowledge, a jury would not be able to evaluate the adequacy of the attorney’s actions without the aid of expert testimony."

Smith v. New Hampshire Department of Revenue Administration,3 opinion issued November 25, 2002, is the sad denouncement of the constitutional interest and dividends tax litigation that began so promisingly many, many years ago. After the Court in the present case had found five years earlier that the interest and dividends tax unconstitutional4 the case was remanded to the trial court for a determination of the question whether those taxpayers who had paid the tax under protest were entitled to refunds. The trial court ruled that the petitioner taxpayers had failed to show that the unconstitutional exemptions, in practice, discriminated against out-of-state non-bank investment sources. As a result, the taxpayers were entitled to only a partial refund of their interest and dividends taxes. Unfortunately, the Supreme Court affirmed, with a result not uncommon in New Hampshire: the taxpayers are left to hang out to dry when it comes to asking for refunds for unconstitutional taxes paid under protest.

Several cases can be noted in passing. In In Re Juvenile 2002-098, opinion issued December 20, 2002, the Court unanimously determined that a district court has "jurisdiction over an abuse and neglect case involving a juvenile nonresident foreign national" and that the district court’s jurisdiction "could be invoked to obtain special immigration juvenile status [for the juvenile] under federal law." In Cross v. Brown, opinion issued October 29, 2002, the Court held that the New Hampshire Right to Privacy Act, RSA chapter 359-C, does not create a civil cause of action allowing aggrieved citizens the right to seek a general declaration that the statute has been violated. In Hooksett v. Baines, opinion issued December 12, 2002, the Court held that it was unconstitutional for a town to establish term limits for members of boards, committees or commissions of the town, the Court holding that "the State has created a comprehensive statutory scheme governing the field of elections, including qualifications for office, and has neither expressly nor impliedly granted towns the authority to impose term limits. As a result, the town’s term limits provision is preempted by statutory law and Part I, Article 11 of the State Constitution."

Sisson v. Jankowski, opinion issued November 15, 2002,5 is a very interesting legal malpractice case in the estate planning field. The defendant attorney was sued by an intended beneficiary of a will that she drafted for the decedent but which the decedent never signed. The alleged breach of duty was that the defendant had been too slow in preparing the document and, more particularly, had failed to make a pen and ink change to the document at the decedent’s hospital bedside when the decedent was still competent, but rather elected to take the document back to her office to make the change. When she returned three days later, the decedent was incompetent. The Court’s unanimous opinion, elegantly written by Chief Justice Brock, made a careful and proper distinction between the Simpson Case6and the present case and sided with courts in other jurisdictions: "The duty in Simpson was to draft the will non-negligently, while the alleged duty here is to ensure that the will is executed promptly. Courts in several jurisdictions have declined to impose a duty of care where the alleged negligence concerns the failure to have the will executed promptly….The majority of courts confronting this issue have concluded that imposing liability to prospective beneficiaries under these circumstances would interfere with an attorney’s obligation of undivided loyalty to his or her client, the testator or testatrix." The decision is a welcome limitation on the application of malpractice standards in the estate planning area and wisely points out that "the potential for conflict between the interests of a prospective beneficiary and a testator militates against recognizing a duty of care." "Creating a duty, even under the unfortunate circumstances of this case, could compromise the attorney’s duty of undivided loyalty to the client and impose an untenable burden upon the attorney-client relationship. To avoid potential liability, attorneys might be forced to pressure their clients to execute their wills summarily, without sufficiently reflecting upon their estate planning options."

The Supreme Court used the occasion of a trial judge’s blanket rule prohibiting the photographing, recording or broadcasting proceedings in courtrooms in which he presided to establish guidelines for trial courts to follow when exercising their discretion to exclude cameras or other electronic media from the courtroom, in Petition of WMUR Channel 9, opinion issued December 13, 2002. The Court was divided on the issue although the dissent (Justice Duggan) differed only that he would limit the holding to the facts in this case and would hold only that the judge’s blanket policy of excluding electronic media was inconsistent with Superior Court Rule 78(A). The majority, speaking through Justice Nadeau, relied heavily on our State Constitutional provision that "gives the press a presumptive right of access to judicial proceedings and court records, limited, however, by the necessity that it be balanced against a criminal defendant’s fundamental right to a fair trial,"7 and found that the trial judge’s blanket prohibition violated the discretionary provisions of Superior Court Rule 78(A). This Rule creates a presumption against having cameras in the courtroom and the Court moved to use the present case to reverse that presumption and to establish new guidelines, in effect rewriting the Rule, as follows:

In summary, to withstand appellate review, we recommend that future trial court orders restricting cameras or other electronic media from the courtroom be: (1) based upon clearly articulated findings of fact; (2) made after an evidentiary hearing at which all interested are given an opportunity to be heard; (3) drawn narrowly to address a particular problem posing a substantial likelihood of prejudicing the proceedings; and (4) imposed only when no other practical alternative is available. This opinion provides guidelines for trial courts to follow when addressing issues of cameras and other electronic media in the courtroom. Application of these guidelines will help this court and the trial courts better navigate this debated area of trial procedure.

AWL Power, Inc. v. City of Rochester, opinion issued December 9, 2002, is a very important zoning case involving whether or not a developer had obtained a vested right in an approved site plan for a large residential development which encompassed eighteen free standing houses and fifty-nine condominium units on a twenty-four acre parcel of land. The defendant received a permit for the development in 1987 and during the three years that followed built six of the eighteen houses included in the plan and spent approximately $200,000 in public improvements and paid the city an impact fee of $50,000. In 1988, the city amended its zoning ordinance making the defendant’s property a nonconforming use. In 1990, the developer ceased all construction because of the statewide downturn in the economy (the author refers to this as the first Bush Depression), but sought to renew work in 2000. The city refused to allow him to go ahead and the defendant appealed to the superior court claiming that he had a vested interest. The superior court agreed with the city, pointing out that the developer had completed only about 3% of the project and "that this percentage was insufficient to constitute the requisite ‘substantial construction’ necessary to vest the right to complete the project under the common law standard of Piper v. Meredith.8

On appeal to the Supreme Court, a unanimous court overturned the trial court’s determination because it invalidly required "the developer to complete a certain percentage of its overall project." The correct standard for "substantial construction" vesting

considers not only construction measured against the entire plan, but also whether the amount of completed construction is per se substantial in amount, value or worth. Whether or not construction is substantial thus depends upon the facts and circumstances of each case….In cases where construction expenditures amount of large sums, construction need not ‘be judged by comparison to the ultimate cost’ of the project….In this case, the developer’s expenditure of over $200,000 on public improvements and construction of six houses dwarfs the sort of construction expenditures we have found to be insubstantial….(no vesting for ‘relatively small sums spent…for engineering services, clearing, and utility extension in contemplation of expansion’)….(no vesting when good faith expenditures are at most $28,000);….(no vesting when expenditure was less than $1,000). The trial court, in fact, found that the developer’s expenditures on public improvements constituted ‘a relatively substantial amount of money when considered in isolation.’ When combined with the construction of the six houses, the developer’s work was enough to meet the ‘substantial construction’ standard.

In re Noah W., opinion issued December 13, 2002, addressed the issue whether in termination proceedings in probate court the Superior Court Rules of Evidence (now generally applicable to the probate courts) strictly applied to prohibit the admission of relevant material evidence which would have been inadmissible under the Rules. The Court held that since a termination proceeding requires the highest burden of proof (proof beyond a reasonable doubt) which "provides increased protection to the parent in a termination proceeding," the application of the Rules of Evidence were not necessary to provide the protection that the higher standard of proof provided to parents.

Feld’s Case, opinion issued December 31, 2002, marks a disquieting development in the history of the Supreme Court’s attorney disciplinary matters. For the first time, at least in the author’s memory, the respondent attorney, appealing from the decision of the referee appointed by the Supreme Court, suffered a greater punishment than had been imposed upon him by the referee. The case began several years ago when the Supreme Court’s Committee on Professional Conduct filed a petition requesting that the respondent be disbarred. The Supreme Court referred the petition to a judicial referee who recommended a public reprimand. The Supreme Court agreed9 but that opinion was vacated at the bequest of the respondent attorney who claimed that the decision had been tainted by the improper intervention in the case of a justice of the Court who had a relationship with one of the parties to the underlying facts. This second opinion in the case came down hard on the respondent attorney (his conduct was truly egregious) and increased the respondent attorney’s punishment to suspension from the practice of law for one year, from the public reprimand recommended by the referee. It is troubling that, by exercising his right to appeal, the respondent attorney’s punishment was increased.

State v. Dahood, opinion issued December 20, 2002, confronted the issue whether one of the field sobriety tests usually administered by police officers upon the arrest of a driver suspected of driving while under the influence, the Horizontal Gaze Nystagmus (HGN) test, as administered in New Hampshire, is admissible at trial. Up to now, such evidence was routinely admitted in district court trials. This case raises the issue for the first time whether or not this particular field sobriety test is reliable for purposes of admission under the New Hampshire Rules of Evidence. The HGN test is the one that is designed "to detect whether a person’s eyes demonstrate nystagmus under certain conditions." Nystagmus "is a well-known [really??] physiological phenomenon that has been defined as the involuntary rapid movement of the eyeball, which may be horizontal, vertical, rotary or mixed." As administered by the police officer, the officer’s pen or finger is positioned about 12 to 15 inches in front of the suspect’s eyes and the officer proceeds to gradually move the pen or stimulus toward the subject’s ear and out of the subject’s field of vision while the suspect is supposed to follow the movement of the object. The theory behind the test "is that there is a strong correlation between the amount of alcohol a person consumes and the angle of onset of the nystagmus." A unanimous Supreme Court, speaking through Justice Dalianis, found that although many factors other than alcohol can cause nystagmus, the test was used by law enforcement authorities in all fifty states and had been subject to many articles and judicial opinions. The Court determined that the test was admissible, siding with the vast majority of decisions on this issue across the country, but pointed out that the test "is not sufficient to establish intoxication, but is merely a factor, along with other field sobriety tests, to be considered when determining whether a driver is intoxicated."

Finally, State v. Parmenter, opinion issued December 31, 2002, is a case where the Horizontal Gaze Nystagmus (HGN) test was administered to the defendant, who failed the test. This is a charming case in which the convicted driver, as the author’s kids would say, "over shared." The defendant was stopped at about midnight for a non operating license plate light, of all things. As the officer approached and asked for her license and registration, she stepped up to the gallows and inserted her neck into the noose and blurted out that she was "the designated driver for the evening." Seeing nothing amiss, the officer returned to the cruiser and wrote out a warning for the plate light. Returning to the defendant’s car, however, the defendant again volunteered: "Officer, I can’t lie to you, I have had something to drink tonight." When asked how much, she said that she had had three White Russians that evening. By this time, the officer had, of course, noticed her flushed face and glassy eyes and he attempted to administer field sobriety tests. It is fair to say that the defendant wasn’t good at any of them, even suggesting as to one test, "Let’s not do that one." The defendant was hauled down to the police station and requested to take a breathalyzer test but she refused, stating "I know I’m over and you know I’m over." The defendant was convicted at the ensuing bench trial and the Supreme Court affirmed, ruling that the State had proved its case beyond a reasonable doubt. What can one say about this amusing case? As the author first read the opinion he guffawed loudly on at least three occasions.

ENDNOTES

1.

Supreme Court News Release, January 22, 2003.

2.

See the author’s previous criticism in his earlier column at 21 NHBJ 7 (1979).

3.

The author’s firm represented a party to the action and, therefore, the author’s views may be colored.